More Patent Applications Do Not Mean More Innovation

from the just-so-you-know dept

Just a week ago, a bunch of "intellectual property experts" (read: those who benefit from making sure ideas are increasingly locked up) were whining about how folks in Asia are valuing intellectual property "the wrong way." That is, they know ideas are important, and they value them, but they're not tying them up behind government granted monopolies -- preferring instead to compete in the market. Western interests, who are very much focused on locking up intellectual property, have been pushing Asian countries to change and promote things like patents -- so they must be excited to hear that patent applications from the US on the rise in China, suggesting that US firms believe the patent system in China actually matters. Of course, many of these are just US companies hoping to do what they've done in the US in China: hold back innovation by adding an extra barrier. Whenever these types of reports come out, there's a tendency to assume it's evidence of increasing innovation in a country -- when the truth may be the opposite.

It's important to remember here that more patents do not mean more innovation -- and it's unfortunate that so many people equate the two. Thomas Jefferson was famous for not trusting the patent system, even as he was in charge of it -- even to the point of questioning how Constitutional it was to give a monopoly on an idea to one person. He basically felt that patents only made sense in the rarest of circumstances. If the market is providing the proper incentive for innovation, why grant a government monopoly? So, whenever we see reports championing making it easier to get a patent, or celebrating the fact that more patents are being filed as an indicator of innovation, we cringe. With the US patent office using a "when in doubt, approve" standard for granting patents, it's become increasingly easy to get a patent that has no actual innovative component. This has only resulted in more patent filings from those looking to cash in by holding innovation hostage, rather than actually benefiting society by bringing new and better products to market. So, while it may be good to see investment dollars pouring into the Chinese market, focusing on how many foreign patent applications (or grants) there are may mean very little in terms of real innovation.

Re:

Intellectual Property Doesn't Compute

Imagine if we had to apply for use every time we wanted to apply some mathematical formula that was derived in the past. Patenting intellectual property is overly beareaucratic and litigious. Rarely do we know if the patent holder is indeed the first person who had the intellectual idea in the first place. They're just the first to patent it.

But intellectual property can be very valuable. And things of value are generally protected in this world.

China patents

On the china issue specifically: patents in China are pretty marginal at best. The other day however I heard a good reason to patent in China: If you have a partner in China you want to do business with (vendor, channel, customer, whatever) it can be a (small) way to signal that you take the market (and the country) seriously. And on that basis alone worth the not seriously high investment.

Mike said:
"That is, they know ideas are important, and they value them, but they're not tying them up behind government granted monopolies -- preferring instead to compete in the market."

Mike, your ignorance just amazes me...

The Chinese immediately steal ALL inventions produced in US and manufacture them on scale for pennies on a dollar.
Yeah, competition at its best - just look around and steal, no research, no development, just cheap production using dirt cheap workforce...
Is this the future you want ?

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angry dude,

I like how you generalize for all Chinese. Of course, the fact that American firms are filing patents there suggests they don't believe "the Chinese immediately steal ALL inventions."

Anyway, considering the number of American firms who use China for production, it seems like they're fine with how the Chinese work, despite your claims. It also seems like they (unlike you, apparently) understand the concept of comparative advantage.

Re: Stealing inventions

Many (almost all)Australians think that all the good Australian ideas are stolen by American companies (or at least they use their economic might to intimidate and nullify the advantage of Australian companies). So do all the developed and all the undeveloped wall.

Using ALL like that is very dangerous. It leads to sweeping generalisations that contain a grain of truth and a silo full of lies.

Jefferson thought patents weren't constitutional?

Thomas Jefferson was famous for not trusting the patent system, even as he was in charge of it -- even to the point of questioning how Constitutional it was to give a monopoly on an idea to one person.

No doubt Jefferson was distrustful of patents (as am I). I have never read anything about him thinking they weren't constitutional though! Does such a contention (patents are unconstitutional) even make sense? What part of the constitution are they repugnant to? I find no other reference to such a contention (besides the linked article). The linked article does not substantiate this claim either. Mike, are you sure you have a reliable source?

Re: Jefferson thought patents weren't constitution

No doubt Jefferson was distrustful of patents (as am I). I have never read anything about him thinking they weren't constitutional though! Does such a contention (patents are unconstitutional) even make sense? What part of the constitution are they repugnant to? I find no other reference to such a contention (besides the linked article). The linked article does not substantiate this claim either. Mike, are you sure you have a reliable source?

I was simply citing the linked article, which does list a bibliography, though I've also heard the claim elsewhere. My understanding on the constitutional claim is he felt it was actually against the section that is normally used to allow the patent system, giving Congress the right "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;"

While this may look like it favors the patent system, there's a clear caveat -- that it must be used to promote the progress of science and useful arts. If, as Jefferson appears to have believed, granting a monopoly does not promote progress of science and useful arts, then it would be unconstitutional...

Re: Jefferson thought patents weren't constitution

While this may look like it favors the patent system, there's a clear caveat -- that it must be used to promote the progress of science and useful arts. If, as Jefferson appears to have believed, granting a monopoly does not promote progress of science and useful arts, then it would be unconstitutional...

Perhaps. But Article 1, Section 8 of the US Consitution enumerates the powers of Congress. From Wikipedia:

"Congress may promote the progress of science and useful arts by granting copyrights and patents; .... note that this is the only power granted where the means to accomplish its stated purpose is specifically provided for."

The inference I extract is that the only way our founders thought Congress can promote the progress of science and useful arts is through securing patents and copyrights for limited times. So to say the clause 'favors' patents and copyrights is an understatement - in fact it declares that B is the only way. Therefore, these mechanisms would be by definition constitutional (if the constitution dictates that A is accomplished through B, how can B ever be unconstitutional?).

Re: Re: Jefferson thought patents weren't constitu

The inference I extract is that the only way our founders thought Congress can promote the progress of science and useful arts is through securing patents and copyrights for limited times. So to say the clause 'favors' patents and copyrights is an understatement - in fact it declares that B is the only way. Therefore, these mechanisms would be by definition constitutional (if the constitution dictates that A is accomplished through B, how can B ever be unconstitutional?).

I think there's a logical fallacy in that line of reasoning. You make a hidden assumption in your statement that since this is the only way to promote progress and useful science, *any* securing of rights for a limited time is legitimate. However, that's not what the clause says. It says (or, at least it can be read as saying) that *for the sake of promoting progress of science and useful arts* restrictions may be granted.

By that reading, any such restriction granted by Congress that *do not* promote such progress would then be unconstitutional.

Re: Jefferson thought patents weren't constitution

I'm not assuming that exclusive rights for limited times is the only way to promote progress, I'm saying that the Founders expressly enumerated one (and only one) mechanism to promote progress, specifically exclusive rights for limited times.

Yes, the clause does say 'for the sake of promoting' progress, Congress may grant exclusive rights for limited times. But let us take a look at the form:

Congress may do A, by B.

You are saying that any B that does not do A is unconstitutional. But the Founders are saying that any B does A (because the only way they allow to do A is by B). What I believe you are missing is that, to the Founders, B always does A. So your contention that some B may not do A is not possible by the Founder's basic premise.

Re: Re: Jefferson thought patents weren't constitu

What I believe you are missing is that, to the Founders, B always does A.

No, that's your assumption, which is exactly what I thought I was pointing out in my last comment (though, I obviously failed). The founders clearly do not believe that B always does A (Jefferson being case #1).

I believe you are reading the clause incorrectly. In my reading, it's saying "If it does A, Congress may B." In other words, if there's evidence that, in this case, to promote the progress of science and useful arts, creating a monopoly makes sense, then Congress may do so.

However, if it does not promote such progress, than Congress may not. Thus, offering a patent when it does not promote progress, Congress cannot, Constitutionally, allow a patent.

Re: Re: Re: Jefferson thought patents weren't cons

It really is amazing how many times Mike has to reiterate the same point over and over. For all of the 'logic' that has been applied, so many assumptions are woven in. It's ridiculous.

All i really intend to say is that Mike obviously has a handle on the subject matter and logical reasoning....something which most of the posters in this article could stand to work on.

Stating that B always accomplishes A based on the constitutional excerpt is obviously bad logic. Where does it even infer that the Founders believed that B always accomplishes A? After asking yourself that question consider this.....Mike's point was that one of the early American greats - Thomas Jefferson - was against unlawful patents, which would be defined as any patents that did not accomplish A as was intended by the article in the Constitution.

I don't see how it can get any plainer. Excellent article, Mike. And I, for one, am thankful for the refreshing logical reasoning you employed in your responses. Nice work.

Mike's thought that patents aren't constitutional

Mike just has the odd idea, and conviction, that granting patents does not promote progress. Extending the seed of Mike's logic means that the Founding Fathers ideas are fallacious, that every Congress who's voted for patent laws didn't know how to promote progress, that everyone who thinks they should get a patent is wrong and anti-progress, that all patent examiners and commissioners are incompetent or idiots who spend every day granting unconscionable monopolies on things everyone knows to be previously known, that patent applicants and their counsel are devious, no-good destroyers of progress.......

Re: Mike's thought that patents aren't constitutio

"Mike just has the odd idea, and conviction, that granting patents does not promote progress."

No, Mike is saying that a patent system is constitutional only to the extent it promotes progress. Granting of monopolies in ways not reasonably anticipated to promote overall progress would be unconstitutional.

Interesting that in the KSR v. Telflex case on obviousness going to the SCOTUS the appellants brief starts by quoting the Constitution. In my view, the patent laws should always be tested against the Constitution. Patent laws have the ability to impede progress and if a provision cannot be shown to have a positive overall effect, it should be found to be unconstitutional.

Re: Mike's thought that patents aren't constitutio

First off, I didn't say that patents weren't constitutional. I was pointing out that Jefferson suggested that, and then when asked about it, I explained why he might have thought that.

Extending the seed of Mike's logic means that the Founding Fathers ideas are fallacious, that every Congress who's voted for patent laws didn't know how to promote progress, that everyone who thinks they should get a patent is wrong and anti-progress, that all patent examiners and commissioners are incompetent or idiots who spend every day granting unconscionable monopolies on things everyone knows to be previously known, that patent applicants and their counsel are devious, no-good destroyers of progress.......

Second, I'm surprised that someone who works for a law firm would have such little grasp of basic logic.

I did not say that the founding fathers ideas are fallacious, or that all patent laws are wrong (or any of the rest of that).

I've just pointed out (and backed up with research) how patents can often do more harm than good in promoting innovation.

If you honestly believe that all patents and all monopolies are good for innovation, then shouldn't you extend that logical fallacy to a ridiculous end that *all* businesses should have a monopoly?

Re: Re: Mike's thought that patents aren't constit

"I've just pointed out (and backed up with research) how patents can often do more harm than good in promoting innovation."

It seems pretty clear that Watts patent on the steam engine delayed the industrial revolution by 10 to 20 years. What is the total cost of that one example of the delaying effect of patents?

The development of a Watt style steam engine was inevitable - other types of steam engines were already in use and it was the progress in metal working which made a Watt engine possible which then very shortly led to Watt's "invention". If he had not done it, someone else would have done so within a few years.

Re: Re: Mike's thought that patents aren't constit

Hyperbole - that patents don't promote progress, or that the patent system is unconstitional - meets hyperbole - that the Founding Fathers ideas are fallacious...
Neither hyperbole is an example of logic.

But anew: an inventor works away to create a composition that will improve the manufacturability or utility of polymers. He creates several compositions that are novel and non-obvious, and he patents those. He can't give the compositions or the patents away, because everyone doubts they can be incorporated profitably. Much later, the inventor figures out how best to use his earlier compositions. Did his patents, when issued, promote progress? NO, everyone said the inventions were useless, and no one bought any of it. Was granting those patents unconstitutional? NO. Should the inventor have been able to sue others who tried to take his invention, before he had figured out how best to make, use and sell it. YES.
Inventors, who can invent but are less capable marketers, should not be made into public benefactors, whose inventions must be given away to whatever company may do a better job of using or selling their inventions.

Re: Re: Re: Mike's thought that patents aren't con

Inventors, who can invent but are less capable marketers, should not be made into public benefactors, whose inventions must be given away to whatever company may do a better job of using or selling their inventions.

Talk about fallacious assumptions. Who ever said they should "give away" their inventions. If they are less capable marketers, then they should find marketers to team up with. If someone else can do a better job using or selling the innovation, isn't that the best way to promote progress? That other company is creating a net benefit to society -- which is what the patent system is supposed to do. So, no, I'm not saying anyone should ever have to "give away" their invention (not even sure where you got that assumption from), but if the purpose of the system is to promote innovation, then your example has it backwards. It's holding back innovation by keeping the innovation away from those most capable of doing so.

I am just wondering some of the pros and cons to patenets. While the idea of a truely free exchange of ideas is a great idea, what is the incentive to spend the time required to actually make many of the products we enjoy today? Say I spend years of my life inventing a new medicine, I doubt that I would do this if I knew that anybody could then take my work and do with it however they please.
But I must say that the concept of owning an idea does trouble me...

Yes, I apologize, I made a mistake. Saying that any system of exclusive rights (B) promotes progress (A) is not good logic. I also agree with Mike, that any system of exclusive rights (B) that does not promote progess (A) would be unconstitutional. But Mike didn't say that in his original post:

Thomas Jefferson was famous for not trusting the patent system, even as he was in charge of it -- even to the point of questioning how Constitutional it was to give a monopoly on an idea to one person.

Once again, Mike says that Jefferson questioned how Constitutional it was to give a monopoly (exclusive right) on an idea to one person. Here is why I have a problem with this statement:

1. From the Constitution, the Founders said that the only way Congress can promote progress was by granting exclusive rights for limited times. Therefore, the Founders must have believed at least some forms of exclusive rights with limited times promoted progress and were therefore constitutional. Else, the clause would be a nullity (i.e., it wouldn't say anything). (My point - Congress can do A by B.)

2. Of course, this grant is also a limitation - Congress must be promoting progress when granting exclusive rights for limited times. If Congress up and gave an exclusive right on some idea to anyone with the last name 'Bush', that would obviously not be a grant that satisfies the progress limitation. (Mike's point - Any B that does not do A is unconstitutional).

3. But what Mike is saying in his original post is misleading: "Jefferson thought doing (any form of) B was unconstitutional." I agree that not all B's can accomplish A. But Mike makes it seem that Jefferson thought that all B's are unconstitutional. Stating such a proposition is misleading, especially without citing a source that backs up his contention (e.g., a quote from Jefferson to that effect).

I guess I just feel that Mike is exaggerating a bit - I have always appreciated how TechDirt takes an honest view of the issues, but I feel this is trumping things up a bit. Jefferson might be objecting from his grave that such a broad statement is being credited to him. ;)

"Inventors, who can invent but are less capable marketers, should not be made into public benefactors, whose inventions must be given away to whatever company may do a better job of using or selling their inventions."

That is not what I see the real problem as being. The real problem is that most inventions would have been inevitably discovered by someone else, whether there was a patent system or not, within a short period of time from when the original invention was made. Independent discovery is common (The transistor was invented independently three times, the jet engine was invented independently twice within a short period of time and radar was invented twice within a short period of time). Further most inventions build on a series of developments.

Where is the justice in giving one man a strangle hold on a whole chain of subsequent developments simply because he was the first to patent one incremental step when someone else would have inevitably made that step within a few months or years.